South African Forestry Company Ltd v York Timbers Ltd (406/2001) [2002] ZASCA 110; [2002] 4 All SA 255 (SCA); 2003 (1) SA 331 (SCA) (19 September 2002)

South African Forestry Company Ltd v York Timbers Ltd (406/2001) [2002] ZASCA 110; [2002] 4 All SA 255 (SCA); 2003 (1) SA 331 (SCA) (19 September 2002)

The Supreme Court of Appeal held that the arbitrator's award of 'costs of the arbitration' did not include the qualifying costs of expert witnesses, as such costs must be expressly awarded according to established legal principles. The court found that the costs award is a 'matter referred to arbitration' and thus capable of remittal under section 32(2) of the Arbitration Act. The delay in applying for remittal was explained by the appellant's attorney's oversight and was condoned, as no material prejudice to the respondent was demonstrated. The appeal was upheld, and the costs award was remitted to the arbitrator for reconsideration of the qualifying costs of expert witnesses. The...

Citation
[2002] ZASCA 110
Parties
Appellant: South African Forestry Company Limited; Respondent: York Timbers Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 September 2002
Case Number
406/2001
Procedural Posture
Civil Appeal / Appeal From High Court Judgment on Arbitration Costs
Outcome
Appeal upheld. Costs award remitted to arbitrator for reconsideration. Appellant to pay costs of application, including costs of opposition and two counsel.
Judges
Howie, Mpati, Nugent
Legal Topics
Arbitration Costs, Remittal of Award, Qualifying Costs of Experts, Arbitrator Discretion
Civil Procedure Commercial and Corporate Arbitration Costs Remittal of Award Qualifying Costs of Experts Arbitrator Discretion

Case Brief

Summary, issues, holding and outcome

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Parties

South African Forestry Company Limited

Appellant

York Timbers Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment on Arbitration Costs

Legal Issues

  1. 1 Does an arbitrator's award of 'costs of the arbitration' include the qualifying costs of expert witnesses.
  2. 2 Is it competent to remit the costs award to the arbitrator for reconsideration under section 32(2) of the Arbitration Act.
  3. 3 Should the delay in applying for remittal be condoned.

Ratio Decidendi

The Supreme Court of Appeal held that the arbitrator's award of 'costs of the arbitration' did not include the qualifying costs of expert witnesses, as such costs must be expressly awarded according to established legal principles. The court found that the costs award is a 'matter referred to arbitration' and thus capable of remittal under section 32(2) of the Arbitration Act. The delay in applying for remittal was explained by the appellant's attorney's oversight and was condoned, as no material prejudice to the respondent was demonstrated. The appeal was upheld, and the costs award was remitted to the arbitrator for reconsideration of the qualifying costs of expert witnesses. The...

Court Disposition

Appeal upheld. Costs award remitted to arbitrator for reconsideration. Appellant to pay costs of application, including costs of opposition and two counsel.

Orders

  • The costs award made in the arbitration between the parties concerning the 1995 price revision is remitted to the arbitrator in terms of section 32(2) of the Arbitration Act 42 of 1965 to consider whether and to what extent an additional award should be made in respect of the qualifying costs of the expert witnesses...
  • The applicant is to pay the costs of the application, including the costs of opposition, which are to include the costs of two counsel.